Supreme Court Scrutiny of `Neutrality' Pacts Could Be Another Blow to Unions

The U.S. Supreme Court announced last week that it will accept a case for review next year on the use of labor-management "neutrality" agreements in union organizing campaigns. An anti-union decision from the high court would make labor organizing more difficult and threaten labor organizations at a national level, labor experts say.

The U.S. Supreme Court announced this week that it will accept a case for review next year on the use of labor-management "neutrality" agreements in union organizing campaigns. An anti-union decision from the high court would make labor organizing more difficult and threaten labor organizations at a national level, labor experts say.

At issue are the so-called neutrality agreements between unions and employers in which the employer agrees beforehand not to actively oppose the union organizing process at a specific workplace. Typically, such agreements specify that both sides refrain from inflammatory or divisive tactics, and that the workers be allowed to choose or oppose union representation free from any pressure or intimidation from either side.

Such agreements have been an essential part of some high-profile victories for union organizing campaigns in recent years, says veteran union organizer Stewart Acuff. The International Brotherhood of Teamsters, the United Auto Workers (UAW), UNITE HERE, the Service Employees International Union (SEIU) and the Communications Workers of America (CWA) have all successfully employed neutrality agreements in big victories over the last ten years, the former director of the AFL-CIO organizing department says.

The case that will come before the Supreme Court next year, Mulhall v UNITE HERE Local 355, has its origins in a 2004 neutrality agreement between the hospitality workers union and Mardi Gras Gaming, the operator of a dog racing track and gambling casino in Hallandale Beach, Fla., according to court documents available at the on-line news site SCOTUSblog. That agreement specified that the company would not actively oppose UNITE HERE's organizing efforts and that Mardi Gras would provide the union with useful information about its employees, including the home addresses and phone numbers of workers.

One Mardi Gras worker who opposed unionization was Martin Mulhall. He was so strongly opposed that in 2008 he brought a lawsuit against UNITE HERE with the assistance of the anti-union group National Right to Work Legal Defense Foundation. According to a statement this week from Foundation President Mark Mix, the legal argument was that the neutrality agreement caused Mardi Gras to provide "money or other thing of value" to the union in violation of the anti-corruption provisions of Taft-Hartley Act.

After some complicated legal maneuvering, the case reached the U.S. Court of Appeals for the 11th Circuit in Atlanta. In 2012, the circuit court ruled in favor of Mulhall, prompting UNITE HERE to appeal the decision to the Supreme Court. According to a statement this week from UNITE HERE General Counsel Robert G. McCracken:

UNITE HERE is very pleased the Supreme Court granted its petition to review the 11th Circuit Court of Appeals' decision....The 11th Circuit's decision is out of step with all of the other courts that have considered the theory advanced by the plaintiff in Mulhall...The plaintiff's theory is that organizing agreements such as the one between the plaintiff's employer (Mardi Gras casino in Florida) and UNITE HERE Local 355 violate the ant-bribery part of the Taft-Hartley Act passed in 1947. The theory is implausible on its face. No employer would think to bribe a union by making it easier for the union to organize.

The Right to Work Foundation is also pleased that the case will get Supreme Court review, but for reasons quite different than UNITE HERE. Mix's statement explained that the group believes that "the 11th Circuit's decision was too narrowly tailored" in restricting unions and employers. "We hope the Supreme Court will expand upon the 11th Circuit's landmark ruling and ensure that union organizers can't cut backroom deals with management," he stated. In other words, to sharply limit or prohibit neutrality agreements.

That's a danger that should not be taken lightly, says Acuff. The anti-democratic tendencies of the current members of the Supreme Court were sharply highlighted this week, in its decision to invalidate a section of the Voting Rights Act, he said.

"Since 1935, the National Labor Relations Act has said it shall be the policy of the United States to encourage collective bargaining, and that the right to form unions is essential to collective bargaining," Acuff says. "Neutrality agreements are simply following the letter and the spirit of the law. ... It takes right-wing intellectual gymnastics of Olympian proportions to conclude that is illegal for a company to respect the rights of its workers," by entering in to neutrality agreements.

It is the practical success of neutrality agreements that has attracted the opposition of the Right to Work Foundation, Acuff adds, not any legalistic argument based on Taft-Hartley. The Teamsters, for example, were able to organize some 10,000 truck drivers in 2007 at the United Parcel Service freight division based on a neutrality agreement.

Some 8,000 hospital workers became members of the SEIU under a neutrality agreement with Tenet Healthcare Corp. at about the same time. And UNITE HERE has successfully used such agreements in dozens of hotel and casino organizing campaigns over the last decade, most recently at a Caesar's casino under construction in Baltimore. There are many other examples, Acuff concludes, and any new Supreme Court restrictions on such agreements would certainly hinder organized labor's attempt to rebuild membership.

[Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA's Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper's New York City headquarters and in the Washington, D.C. bureau.]

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